Making everyone happy is impossible. Pissing them off is a piece of cake. I like cake.

Saturday, November 14, 2009

Son of a gun!

One of the things that I have consistently maintained is that the criminal law should be reserved solely for those who have done harm to others—not potential harm. Indeed, under a libertarian government, the only criminal law should be...

No person shall initiate force or fraud against another's life, liberty or property.

Quite apart from the happy fact that this would allow us to imprison every single MP, it is only right that criminal sanctions—the removal of property or liberty from convicted offenders—are done in response to their initiation of force or fraud.

A former soldier who handed a discarded shotgun in to police faces at least five years imprisonment for "doing his duty"....

The court heard how Mr Clarke was on the balcony of his home in Nailsworth Crescent, Merstham, when he spotted a black bin liner at the bottom of his garden.

In his statement, he said: "I took it indoors and inside found a shorn-off shotgun and two cartridges.

"I didn't know what to do, so the next morning I rang the Chief Superintendent, Adrian Harper, and asked if I could pop in and see him.

"At the police station, I took the gun out of the bag and placed it on the table so it was pointing towards the wall."

Mr Clarke was then arrested immediately for possession of a firearm at Reigate police station, and taken to the cells.

Defending, Lionel Blackman told the jury Mr Clarke's garden backs onto a public green field, and his garden wall is significantly lower than his neighbours.

He also showed jurors a leaflet printed by Surrey Police explaining to citizens what they can do at a police station, which included "reporting found firearms".

Quizzing officer Garnett, who arrested Mr Clarke, he asked: "Are you aware of any notice issued by Surrey Police, or any publicity given to, telling citizens that if they find a firearm the only thing they should do is not touch it, report it by telephone, and not take it into a police station?"

To which, Mr Garnett replied: "No, I don't believe so."

Prosecuting, Brian Stalk, explained to the jury that possession of a firearm was a "strict liability" charge – therefore Mr Clarke's allegedly honest intent was irrelevant.

Just by having the gun in his possession he was guilty of the charge, and has no defence in law against it, he added.

This is, of course, utterly irrelevant: the jury, had they had any balls whatsoever, should have returned a "not guilty" verdict—and they would have been perfectly within their rights to do so. They chose not to.

And now this man faces a minimum of five years in gaol—and not only was he doing "the right thing" but he had not initiated force or fraud against anyone. Do you see?

Thing is, I don’t see what the outrage is about. If you find a weapon in your garden, the correct thing to do is surely to leave it alone, call the police, and let them come and collect the weapon. Not to go traipsing down to the local police station and produce a shotgun in front of the startled receptionist with an Errol Flynn style flick of the wrist.

Besides, what kind of idiot discovers that a shotgun has been thrown into his garden – most likely being disposed of by a criminal – and goes and picks it up? Has he really never heard of fingerprinting?

So, here are a couple of facts that, it seems, Stuart couldn't be bothered to read:

Paul Clarke did not "produce a shotgun in front of the startled receptionist with an Errol Flynn style flick of the wrist": he phoned ahead to the Chief Superintendant and made an appointment; then, in an interview room, took the gun out of the plastic bin-liner.

The gun was found in a plastic bin-liner: that means that his handling could be, and probably was, minimal. In any case, fingerprints are actually quite difficult to remove because they are laid down in fats—even tried to clean your frying pans simply by wiping it with a cloth?

As such, any fingerprints left by the original owner—provided said thug wasn't sensible enough to wear gloves—would not have been destroyed. As such, Mr Clarke's fingerprints would have been found but could be discounted.

Police, at all times, should maintain a relationship with the public that gives reality to the historic tradition that the police are the public and the public are the police; the police being only members of the public who are paid to give full-time attention to duties which are incumbent upon every citizen in the interests of community welfare and existence.

Under this fucking stupid law a policeman can handle a gun with impunity, but a citizen goes to prison for five years for doing so. This totally undermines the concept that the police are citizens and the citizens are the police: it undermines the Peelian Principles of good policing because it elevates the police above the level of ordinary citizen, paving the way for a police state (were we not effectively living in one anyway).

That is why Stuart's post is wrong at a fundamental level. On a more elementary level, as I said over at Sharpe's Opinion, anyone who thinks that someone should get five years in prison for being an "idiot" is simply not worth listening to on any level.

A man who found a loaded gun linked to a gangland shooting was told by Scotland Yard to carry it across south London to a police station.

John Leary came across the weapon in a playground where it had been abandoned days after the crime. But the Met refused his request for a plain-clothes officer to collect it from his home.

Today the force admitted major failings over the matter.

Disabled Mr Leary, 51, found the weapon inside a plastic bag near his home on the Hemans estate in Stockwell. Speaking for the first time since the find, he said: "I was going to hang the bag on the railings until I felt its weight. When I looked inside there was a big revolver, a passport and some cash. It had a long barrel and I could see the chambers were loaded. There was no question of leaving it where kids play."

Immediately after finding the revolver he was confronted by gang members who tried to get him to hand it over. But he refused and called police.

Officers suggested they send a patrol car to his house, but he refused for fear of reprisals from the gang members who had seen him carry the bag away. "I told them it was more than my life was worth," said Mr Leary.

There's nothing like a consistent application of the law, eh?

UPDATE 3: a lot of people are suggesting that maybe the jury did not think that Paul Clarke's story was entirely believable. If that is the case, then it should have been reported; furthermore, he should have been charged with something other than simple possession of a firearm.

It is not good enough that justice be done: it must be seen to be done in a transparent way. Of course, since cameras are not allowed in our courts, we proles must rely on the press...

37 comments:

Under this fucking stupid law a policeman can handle a gun with impunity, but a citizen goes to prison for five years for doing so. This totally undermines the concept that the police are citizens and the citizens are the police.

But that's true already - a normal police officer can't handle a gun with impunity, but a trained firearms officer can. It's not so much that this doesn't undermine Peel, but that Peel has already been undermined for years. Firearms officers have special status an the ability to handle guns. 'Normal' police and members of the public do not.

Just to be clear here as well, I don't believe 5 years is a proportionate penalty for having broken this law, and I didn't say it was. It's clearly way out of line with his offence. But it's not surprising that a guilty verdict was returned - he was guilty.

When and if anything like this happens to anyone else, such as people reading this post, we should all do the following:-

(1) Find a safe place, such as inside a large aluminium or steel box big enough to hide the weapon without the box being long and thin, to act as a Faraday Screen, and put the weapon (and its rounds) inside it. An old 1940s water tank would do, or a big and entire oil drum with a good lid. Even a length of old cast-iron pipe would do if it was broad enough.

(2) Find a place to bury the thing safely, where the ground-disturbance can be well-disguised, and put it there. Remember to redistribute the grould-soil waste somewhere else. Do NOT be videoed by the Soviet while so doing.

(3) Say nothing. That is the primary lesson of this.

(4) Continue to say nothing, possibly for many years, possibly for ever.

(5) Remember where you left it, so you can add pieces to the collection later.

(6) Learn how to make and use _repeating crossbows_ which are not, afaik, illegal to have. (Yet.)

There are three separate issues here: (1) should possession of a firearm be a strict-liability offence, (2) should possession of a firearm carry a mandatory minimum sentence and (3) was the defendant telling the truth when he said his possession of the gun was wholly innocent.

(1) an (2) raise all sorts of seriously arguable points. (3) is not something we can judge as observers from outside. We cannot assume the jury believed him, they might have concluded that his explanation was untrue.

An armed policeman has to pass a firearms certificate, and his access to weaponry is strictly controlled. Very similar to the position that everyone else is in, in fact: if you want to possess a shotgun, you must demonstrate that you are capable of handling it correctly before you can obtain a licence.

In this case, an ordinary policeman is able to handle a weapon without a licence, whilst an ordinary person gets a minimum of 5 years in jug.

See the difference?

On another point, you say "I don't believe 5 years is a proportionate penalty for having broken this law, and I didn't say it was."

How, exactly, does this square with the assertion, made in your post, that you "don’t see what the outrage is about"?

"In this case, an ordinary policeman is able to handle a weapon without a licence, whilst an ordinary person gets a minimum of 5 years in jug."

I don't know if that's true - I would assume that had he called in the gun find properly, a trained firearms officer would have been sent to deal with it. But equally, you could be right.

"How, exactly, does this square with the assertion, made in your post, that you "don’t see what the outrage is about"?"

Ah, you have me there - that sentence was really mainly referring to Jennie Rigg's post on the same subject, which ended 'Anybody out there still think that if you've done nothing wrong you've nothing to fear?' The way I see it, he did technically do something wrong. That being walking around with a concealed, loaded weapon he didn't possess a licence for. And we all know about 'technical breaches of the rules'.

Whatever the rules say, the jury would have been within their rights to find not guilty. Having been on a jury for an attempted murder case, it is frightening how stupid the average juror is and open to manipulation either by the judge or their own predujices. If I had not been there as the only juror who understood the case to spend hours explaining one by ony why the bloke was innocent, he'd have been sent to jail forever. I'm sorry I wasn't on that jury to have done the right thing by Paul Clarke.

DK,//Quite apart from the happy fact that this would allow us to imprison every single MP, it is only right that criminal sanctions—the removal of property or liberty from convicted offenders—are done in response to their initiation of force or fraud.//

Interestingly, you exclude the logical punishment for murder, following the principle given above.

I have been trying to work out if the Death Penalty is consistent with Libertarian philosophy. Putting aside, for the time being, the issue of innocent people wrongly convicted, and just focus on someone known for certain to be guilty, is it permissible for a Libertarian state to take their life, if the criminal has done the same?

I confess, I waver between favouring the death penalty, and rejecting it.

What are your thoughts on the Death Penalty, DK? And are there any good Libertarian articles on the topic?

In his statement, he said: "I took it indoors and inside found a shorn-off shotgun and two cartridges."I didn't know what to do, so the next morning I rang the Chief Superintendent, Adrian Harper, and asked if I could pop in and see him.

This claim simply doesn't ring true.......

Clarke finds a dangerous weapon yet decides to keep it at home overnight - why?

Next morning he phones the Super, and says what?Perhaps Clarke said something like, 'I've got a sawn-off shotgun in a tesco bag, Adrian, luv, I'll pop down to the nick as soon as I've finished me crumpets?'

Or did he simply book a mysterious appointment with CS Harper without ever giving any hint about the dangerous nature of his mission?

//I really, really dislike the concept of the state being able to take life at all.//

Yes, it does make one feel quite squeamish, doesn't it? However, I confess that the idea that the state can deny someone their liberty for their entire life is also an unpleasant concept. I have reconciled myself to the fact that all criminal punishments are brutal, and unpleasant, and, indeed, uncivilised. However the crimes that necessitate the state being uncivilised and brutal are themselves uncivilised and brutal.

Of course there are plenty of stories about people being discovered to be innocent after they have been executed. So I suppose even if one believes that it is correct to execute someone who has committed murder, one can also believe that because the state can never ever be certain enough that it would be wrong for the state to ever use the death penalty.

And of course a related issue is things like mandatory castration or lobotomy for people convicted of paedophilia.

"Or did he simply book a mysterious appointment with CS Harper without ever giving any hint about the dangerous nature of his mission?"

Such is the mindset of someone who likes to think of themselves as important in their community. I believe I covered that idea already.

Still not worth 5 years.

I think, for background, you should also be aware of the nature of the neighbourhood. Rather than be discouraged (or even jailed) for misguided and arrogant public spirit, it would be more helpful, I would suggest, to do the complete opoposite of what has actually happened here.

Unless you just like the idea of lawless council estates of course. In which case, carry on.

Lets say some hapless pensioner opens a bag and finds a sawn-off at the end of his garden.

Now very few oldies (with the exception of the likes of Ronnie Biggs) would keep the gun at home overnight - no, they would either call the Bill there and then (providing they were not incapacitated by a small heart attack), or scoop up the offending item and leg it to the nearest nick (hoping not to be taken out be a Swat team en route).http://www.independent.co.uk/news/uk/crime/police-officers-will-not-face-action-for-shooting-tableleg-man-466058.html

Very few oldies, unless they had a surname of Biggs, would receive the threat of jail sentence -same goes for a woman.There is more to this story than meets the eye?

"Disabled Mr Leary, 51, found the weapon inside a plastic bag near his home on the Hemans estate in Stockwell. Speaking for the first time since the find, he said: "I was going to hang the bag on the railings until I felt its weight. When I looked inside there was a big revolver, a passport and some cash."

Now if it was me, I'd have said: "When I looked inside there was a big revolver and a passport."

Ah, the old reliable, no smoke without fire. The reports don't suggest that the prosecution offered anything more than "he was in illegal possession of a firearm and good intentions are no defence." But if you are a miserable statist who thinks that plod, the CPS and politicians can do no wrong, best imply that the defendant is guilty of more than he was actually charged with.

As a FAC holder, I know a fair amount about UK firearms law. A sawn-off shotgun is a Section 5 firearm, so the 5 year mandatory minimum sentence applies. But unless there is something that is not being reported, I cannot see why this man was even prosecuted. Yes, he was in possession of a s5 firearm for a few hours - and that is an absolute offence - however that was for the purpose of taking it to the police. I know personally of a case where a 455 cal Webley Mk VI was found in a loft and taken to the police and there was no question of a prosecution. This case is either imbecile or there is something being left out of the reporting.

But if you are a miserable statist who thinks that plod, the CPS and politicians can do no wrong, best imply that the defendant is guilty of more than he was actually charged with

Except the behaviour of the police and the CPS in this case is at odds with how I know they have behaved in similar cases in the past, where no prosecution occurred. Now it is possible that the police and the CPS have taken collective leave of their senses or it may be that there is more to it. How do you explain the inconsistency?

An armed policeman has to pass a firearms certificate, and his access to weaponry is strictly controlled. Very similar to the position that everyone else is in, in fact: if you want to possess a shotgun, you must demonstrate that you are capable of handling it correctly before you can obtain a licence

Not quite correct. In fact no test of competence is required to get a shotgun certificate, or even a 'good reason' to acquire and keep. The position of armed police is different since most handguns went from s1 to s5 of the 1968 act. Armed police have the 'authority of the secretary of state' to possess prohibited weapons. They don't have a licence as such and in fact no police force has the authority to grant them a licence to possess a s5 prohibited weapon. s5 authorities are administered centrally from the Home Office, though a lot of the paper still seems to devolve onto local forces.

In this case, an ordinary policeman is able to handle a weapon without a licence, whilst an ordinary person gets a minimum of 5 years in jug

Not a s5 he doesn't. That's why handguns can no longer be kept at the local nick.

Just to be clear here as well, I don't believe 5 years is a proportionate penalty for having broken this law, and I didn't say it was. It's clearly way out of line with his offence. But it's not surprising that a guilty verdict was returned - he was guilty

Well he should never have been prosecuted in the first place for a purely technical violation of the law. And of course the jury could still have acquitted him because they thought the violation was technical. His brief really should have spelt that out to the jury. If I had been on the jury I would have argued hard for an acquittal on the basis that the case should never have been brought in the first place.

There's some serious curtain-twitching going on here about Paul Clark. The idea seems to be that he must be some sort of weirdo or criminal because the police and the State wouldn't prosecute him otherwise.

People haven't been paying attention during the last decade or so. He was the easiest of easy targets for a system which is run solely for meeting targets. He hands in a firearm, it's a "strict-liability" offence (i.e. no defence), he isn't a dangerous criminal so he'll be easy to handle, he even came direct to the police station, for Christ's sake. How easy a tap-in was that? Copper wins, CPS wins, everyone gets to tick their boxes.

It really can be as simple as that. No "secret evidence", no conspiracies, just a corrupt state abusing its powers.

By the way, it is nice to have "strict liability" laws such as this, it balances all of the "zero-liabilty" laws that MPs and state 'servants' live by.

Clarke finds a dangerous weapon yet decides to keep it at home overnight - why?"

I guess he wasn't too worried aout the possbility of the thing loading itself with the two shells then extricating itself from the plastic bag, creeping into his room and lining him up in its sights...

It's just a tool, not a deadly snake.

If he'd had kids, you might have had half a point. As it is, you just look like a hysterical ninny...

As Dick Puddlecote points out, to the likes of A&ECN, a hard-core statist, that can only be the reason. To think otherwise is to risk one's whole worldview crumbling around one

Not really. I have some practical experience in this area and know for a fact of instances where members of the public have done what this man has done and have not been prosecuted. Therefore there are two possibilities: the CPS is being inconsistent; or there are some aggravating factors, though I can't think what those could be.

'It's just a tool, not a deadly snake' - yes, very Sigmund Freud, JuliaM, now lets review my comments in a slightly less hysterical way, shall we?

Clarke it seems was already known to the Bill after being found guilty (then acquitted on appeal) of assaulting a DVLA inspector.http://www.thisissurreytoday.co.uk/news/Man-accused-attacking-DVLA-inspector-broom-walks-free/article-361380-detail/article.html

Curiously a sawn-off shotgun then finds its way into his possession so Clarke decides to give it a bed for the night perhaps assuming it has been temporarily misplaced by one of the local grouse beaters (rather than being hurriedly disposed off by Mr Big).

A phone call is put into the Bill next day.Did Clarke mention the illicit shooter, in which case DS Harper was presumably complicit with the plan to hand deliver the item to the local nick?

Or maybe Clarke insisted on meeting the Super, but despite housing a dodgy weapon declined to give any reason for the assignation?

As I say it just doesn't stack up, and dreary (yet somewhat predictable) accusations of being a 'hard core statist' are a very poor substitute for a rational argument indeed.

"Clarke it seems was already known to the Bill after being found guilty (then acquitted on appeal) of assaulting a DVLA inspector."

Unless, of course, it was in the "you got off last time so we'll get you this time" sense.

We are not told what time it was found, but, if it was close to beddy-byes time, I suggest anyone who has had to deal with UK plod recently would be tempted to deal with it in the morning rather than sit up and wait for plod to come around at their convenience and then have to fill out a statement.

Your "more to this than meets the eye" argument was dealt with: The reports don't suggest that the prosecution offered anything more than "he was in illegal possession of a firearm and good intentions are no defence."

And that is all that is relevant, what is presented in a court of law. Had the court been cleared to here secret evidence, this would have been reported. If Mr Clarke has been dealt state rather than judicial justice, i.e. the motivation for prosecution was not this offence but some other perceived wrong (which "more to this than meets the eye" implies) then anyone but a hardcore statist would think: "that's outrageous, if they've got evidence of another crime they should present it in court" rather than "ah, that's alright then."

You surprise me DocBud, as a medic I thought you might have the capacity to understand the difference between media reports and what REALLY happens behind the scenes?

I know of at least one incident (following the death of a child from meningitis) where the reports were grossly distorted (to provoke certain public prejudices, I expect) - needless to say medical staff cannot give their version of events to the Daily Mail or their favourite blog in order to set the record straight.

I have only made one simple assertion - that to my mind Clarke's version of events (as presented) do not have a ring of authenticity about them?I have never said that he deserves jail, or that the police are blameless.

I am sorry if my interpretation of this information does not fit in with your personal world view - but then again, apart from Somalia, which country HAS opted for a near stateless society?

As for JuliaM - I will leave you to your Freudian fantasies about what I have NOT said. Carry on with your anti-statist tub thumping if it makes you happy.

If you call the plod to your home and report a discarded firearm in your garden, which you have not touched, technically you are in possession of it and apparently can be 'done' for this. This law is ill thought out. What the hell are these 646 useless idiots playing at?

Have you considered the possibility that the jury simply did not believe that Clarke came into possession of the gun in the way that he claims he did?

This is yet another argument for publishing all trial transcripts online, given the pisspoor nature of most court reporting - that way, we'd know whether the prosecution questioned Clarke's account of how the gun was found and dealt with in a way that convinced the jury, or whether the jury really were just pathetic enough to convict him of the technical offence despite believing he was morally blameless.

This is yet another argument for publishing all trial transcripts online, given the pisspoor nature of most court reporting

I would agree. If the jury believed that this was nothing more than a technical offence then they should have acquitted. And even if the jury were perverse enough to convict in such circumstances, the judge has the power to waive the minimum sentence if exceptional circumstances operate.

For example, a bus driver was convicted a couple of years ago for possession of prohibited firearms he'd ordered over the web. They were replicas of old west guns - the orginals would have been antiques - and he was given a fine because it was accepted he was a collector and was not going to use them for criminal purposes.

Even strict liability offences are subject to the condition "without lawful excuse". It's difficult to say without the transcript, but I would imagine the argument in court would have been that the defendant could have asked the police to collect the gun but chose instead to deliver it to the copshop himself without making it clear beforehand that was what he was intending to do. If he had been told to bring it in he would have had lawful excuse.

If someone where I live had found a gun on his property, he probably would have simply kept it and boasted to his friends about his good fortunes. It's like finding a wad of cash on the street.

I sometimes wonder as well why governments would only allow people who have proven their competence to own shotguns etc. They ought to only allow inept people to own guns thus making oppression a little easier. Do they really want every armed citizen to be capable of defending themselves?